Jones v. Cooper's Estate

• Decision Date: 05 April 1975
• Docket Number: No. 47634,47634
• Citation: 216 Kan. 764,533 P.2d 1273
• Parties: Aretha JONES, Appellant, v. In the Matter of the ESTATE of Walter H. COOPER, Deceased, Appellee.
• Court: Kansas Supreme Court

Page 1273

533 P.2d 1273

216 Kan. 764

Aretha JONES, Appellant, v. In the Matter of the ESTATE of Walter H. COOPER, Deceased, Appellee.

No. 47634.

Supreme Court of Kansas.

April 5, 1975.

Syllabus by the Court

1. In an action for specific performance of an oral contract with a person since deceased, the contract must be established by evidence that is clear and convincing. The term 'clear and convincing evidence' means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue. (Following In re Estate of Shirk, 194 Kan. 424, 399 P.2d 850.)

2. The effect of a negative finding is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the trial judge, the finding cannot be disturbed. An appellate court cannot nullify a trial judge's disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed. (Following Fox v. Wilson, 211 Kan. 563, 507 P.2d 252, Syl. 8.)

3. In an action for specific performance of an oral contract to leave property in return for services, the record is examined and we find no error by the trial court in failing to find a contract was established and that plaintiff performed services in fulfillment thereof.

Willard B. Snyder and Donald C. Little, Kansas City, argued the cause and were on the brief for appellant.

James P. Davis, Kansas City, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

Plaintiff, Aretha Jones, appeals from a judgment of the trial court denying her action for specific performance of an oral contract to leave to plaintiff all property owned by decedent, Walter Cooper, in return for services rendered by plaintiff. The trial court found that plaintiff failed to establish by clear and convincing evidence the existence of a contract and that she performed services for the decedent in reliance on the contract. Plaintiff contends there was no evidence to sustain the trial court's findings and a contract should not be unenforceable because of uncertainty, when one of the parties has performed his part of the contract.

Walter Cooper died intestate on June 27, 1970, leaving an estate of both real and personal property. During the year prior to his death, he became physically ill and depended on plaintiff to perform services for his benefit and to assist him in conducting his affairs. These services consisted in part of checking him out in the mornings, seeing that he had his breakfast, preparing his dinner, assisting him with his hogs, helping him in the garden, doing his washing and ironing, and doing his housework. Plaintiff was not paid for these services.

Plaintiff testified that on or about September 13, 1969, she made an oral contract with Cooper to the effect that if she would continue to look after him, he would give everything he had to her at his death. She also stated that Cooper asked her to put the agreement in writing and that he dictated to her the document subsequently introduced into evidence in the following form:

'My Will

'I Walter H. Cooper in good health and sound mind do give Aretha Jones the power to take care of me in sickness and death.

'She has stood by me for over 20 yrs, and whatever I own will go to her.

'Walter Cooper

'Witnesses

'Earl E. Edlund

'Jack Moore

Plaintiff further testified that Cooper signed this document and she retained it in her possession until a few days after his death. She stated that after Cooper's death she took the document to Mr. Moore and Mr. Edlund, who read, signed and witnessed it.

In support of her claim plaintiff offered the testimony of seven witnesses. Earl Edlund testified Cooper mentioned to him how good plaintiff was to him and that he would like to have his property go to her. Jack Moore testified Cooper told him on several occasions that he wanted plaintiff to have everything he left behind. Goins Jones testified Cooper told him he had turned everything over to plaintiff. Nelson Grubbs testified that on one occasion Cooper told him he wanted everything to go to plaintiff. George Ikert testified Cooper told him he wanted plaintiff to have his things because she was seeing after him and taking care of him. A. Davis Bey testified Cooper told him anything he had in his possession he would leave for plaintiff and that if he had anything left he would rather plaintiff have it. Mrs. Bey testified Cooper told her plaintiff had been awful nice to him and he would like for whatever he had to go to plaintiff because he didn't have anyone else he wanted to have his property.

The administrator of the estate of Walter Cooper offered no evidence or testimony in defense of its position, so the sufficiency of the evidence to establish the claim of plaintiff is dependent upon the foregoing testimony.

In an action for specific performance of an oral contract with a person since deceased, the contract must be established by evidence that is clear and convincing. (Bond v. Bond, 154 Kan. 358, 118 P.2d 549; In re Estate of Hargreaves, 201 Kan. 57, 439 P.2d 378; In re Estate of Shirk, 194 Kan. 424, 399 P.2d 850.) 'Clear and convincing evidence' is defined in Shirk as follows:

'The term 'clear and convincing evidence' means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.' (Syl. 2.)

It is not sufficient that the existence of a contract be shown by a preponderance of evidence. This strict requirement is based upon the inherent danger of fraud in claims against the estates of deceased persons. (In re Estate of Shirk, supra.)

A similar factual situation was presented in In re Estate of Duncan, 186 Kan. 427, 350 P.2d 1112. An action for specific performance was brought to enforce an alleged oral contract between the petitioner and his deceased aunt, whereby the petitioner was to have a quarter-section of land after her death in return for the petitioner's assistance during her lifetime. The evidence offered in support of the alleged contract was the testimony of the petitioner and a memorandum in the handwriting of the decedent which indicated the petitioner was to inherit the property in question. There was also testimony of several witnesses to the effect the decedent had told them at various times that the petitioner was doing good work, that she was pleased with him, and that he was to have the quarter-section of land at her death.

Based upon this evidence, the trial court found the alleged contract had not been established, although the court recognized the decedent probably intended to at some time...